Equal justice under siege: coping with the runaway Supreme Court; new conservative Court majority threatens civil rights gains, sparking uproar across the nation

Ebony, Dec, 1989 by Christopher Benson

EQUAL JUSTICE UNDER SIEGE

IT seemed like an open-and-shut case. After all, there are laws against the kind of abuse Brenda Patterson swore she had suffered during her 10 years as a teller and file clerk at the McLean Credit Union in WinstonSalem, N.C. In page after page of court transcripts, Ms. Patterson describes the sort of outrageous treatment Blacks surely thought they had overcome some time ago. She testified that, unlike White tellers and clerks, she was assigned menial tasks, including sweeping and dusting; she was subjected to racial slurs; she was openly criticized; she was repeatedly passed over for training and promotions; she was denied routine wage increases, and she was overburdened with work. Then, in 1982 she was laid off.

Enough, finally, was enough. Ms. Patterson sued the McLean Credit Union under the toughest federal law on the books--a long-dormant post-Civil War law that called for punitive damages for blatant racial discrimination. In a landmark 1976 case, the Supreme Court had opened the door for Blacks to use that law in similar cases. This year, however, the court decided to use Ms. Patterson's case to slam the door shut, leaving her and her legal claims out in the cold.

Brenda Patterson is not alone. More and more these days, civil rights laws--established, reaffirmed, accpted principles of justice and equality--are being challenged. The surprise is that the challengers are getting their day in court. The shock is that they are winning. "It seems as though there is a [Supreme Court] majority that is intent on closing the books on the 'Second Reconstruction,'" says Christopher Edley Jr., professor of law at Harvard University.

This has been a particularly harsh reality for Blacks, who have come to rely on a fair and compassionate Supreme Court for a generation of legal and social progress. The court's new agenda is what NAACP Executive Director Benjamin Hooks has described as the "legal lynching of Black America's hope ..."

The outcry is understandable. It was, after all, the Supreme Court that led the way 35 years ago--a decade ahead of the president and Congress--finally fulfilling the promise of full equality.

This year, it became clear that those days are over. "We have come full circle," Justice Thurgood Marshall told a group of federal judges in late summer. "We are back where we started."

In four major decisions, the court struck at the heart of Black economic empowerment. In City of Richmond v. Croson, the court took the side of a White contractor in striking down a local law that set aside 30 percent of public works contracts for minority-owned businesses; in Wards Cove Packing v. Atonio, the court changed the rules of the game in filing job-bias suits, placing the burden on employes to prove intentional discrimination instead of discriminatory effect; in Martin v. Wilks, the court allowed White Birmingham firefighters to bring a so-called "reverse discrimination" suit against a lower court-approved affirmative action plan after a Black became a lieutenant; and in Patterson v. McLean Credit Union, the court barred the use of the Civil Rights Act of 1866 in fighting racial harassment on the job. These claims now are limited to the weaker remedies--back pay and reinstatement--of Title VII of the Civil Rights Act of 1964.

"There is no question that the Supreme Court term was a disaster for everyone who believes in equal opportunity, especially in the area of employment rights," charges Ralph Neas, executive director of the Leadership Conference on Civil Rights. "In fact, I would say that right now, the new five-person majority on the Supreme Court poses the gravest threat to civil rights in this country."

To make matters worse, the court seems to be going out of its way to broaden the impact of its rulings, answering questions that have not been raised.

"The court is reaching to reshape anti-discrimination law when all would agree that, if it is to be reshaped, that is the job of the Congress," notes Eleanor Holmes Norton, professor of law at Georgetown University Law Center, and Equal Employment Opportunity Commission chair under President Jimmy Carter.

How did it come to this? Why has the Supreme Court, as Ralph Neas charges, "abandoned" its role as the protector of Black rights? Simply put, the "Reagan Revolution" has taken the high ground. And, as much as anything else, the timing hinges on a single factor. One man. One vote. Justice Anthony M. Kennedy.

It well could be considered Ronald Reagan's revenge. It is sadly ironic that what one of the most influential presidents could not accomplish during two terms in office, he now is accomplishing after leaving office--narrowing the scope of civil rights protections. although he was able to appoint three new justices and elevate William Rehnquist to chief justice, Reagan's most important nomination clearly was that of Anthony M. Kennedy in 1987.

Failing to win confirmation of the controversial Robert Bork, Reagan found little trouble in pushing through his nomination of Kennedy, who might not have been as controversial as Bork but proved to be just as conservative. The civil rights community was blind-sided. There had been no clues in Kennedy's background.